The U.S. Supreme Court agreed last Friday to review a decision from the U.S. Court of Appeals for the Eighth Circuit, which vacated a multi-million attorneys' fee award for trucking company CRST Van Expedited, Inc. The Equal Employment Opportunity Commission initially sued CRST on behalf of roughly 270 women who were allegedly sexually harassed in their driver training. (That number declined as the litigation progressed.)

A federal court in Iowa granted summary judgment on all claims except two (one of those subsequently settled), and awarded attorneys' fees in excess of $4 million to CRST. The claims were dismissed on a variety of grounds, but 67 cases were dismissed and fees awarded because the EEOC did not investigate or attempt conciliation.

The EEOC appealed the attorneys' fee award to the Eighth Circuit, which said that CRST was not entitled to attorneys' fees with respect to the 67 cases that were dismissed because of the EEOC's failure to comply with its pre-suit obligations. The Eighth Circuit also directed the district court to make more specific findings about the cases that were dismissed on their merits. I blogged about the Eighth Circuit decision in January 2015 (scroll down to "EEOC wins a big 'battle' over attorneys' fees").

CRST petitioned the Supreme Court, which agreed to review the Eighth Circuit decision as it pertained to the 67 cases. Based on remarks by EEOC General Counsel David Lopez at a bar association meeting I attended in October (scroll down to item 2, "Conciliation requirement"), the EEOC's position is that Mach Mining disposes of the issue -- you will recall that the Supreme Court said in Mach Mining that the EEOC has a duty to conciliate (and that duty is subject to judicial review) but that its efforts can be relatively minimal. More importantly, the Court said that the remedy in the event of a failure to conciliate is for the court to order the EEOC to conciliate. (In other words, the remedy is not dismissal of the lawsuit.)

Which way will they go?

CRST's position is that Mach Mining doesn't apply because it didn't address the attorneys' fee issue, and because the EEOC did much less than simply fail to conciliate. According to CRST, the EEOC (1) failed to investigate the charges at all, and (2) failed to issue "reasonable cause" determinations, and (3) failed to conciliate. As a result, CRST was forced to incur millions of dollars defending itself against these allegedly baseless sexual harassment claims. (I say "allegedly" because apparently there was never a determination as to whether these 67 cases had any substantive merit.)

The precise issue that the Supreme Court agreed to decide is as follows:

Issue: Whether a dismissal of a Title VII case, based on the Equal Employment Opportunity Commission’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of an attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k).

This case will give the Supreme Court an opportunity to further define exactly what the EEOC's obligations are before it files suit against an employer, and what the employer's remedies will be if the EEOC fails to do its part. We'll keep you posted.

Robin has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act ...

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). Continue Reading